An Appraisal of International Law Mechanisms for Litigating Socio-Economic Rights, with a Particular Focus on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights and the African Commission and Court

• Jurisdiction: South Africa
• Citation: (2011) 22 Stell LR 683
• Pages: 683-705
• Published date: 16 August 2019
• Author: Lilian Chenwi
• Date: 16 August 2019

683

AN APPRAISAL OF INTERNATIONAL LAW

MECHANISMS FOR LITIGATING SOCIO-

ECONOMIC RIGHTS, WITH A PARTICULAR

FOCUS ON THE OPTIONAL PROTOCOL

TO THE INTERNATIONAL COVENANT ON

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

AND THE AFRICAN COMMISSION AND COURT

Lilian Chenwi

LLB LLM LLD

Associate Professor of Law, University of the Witwatersrand*

1 Introduction

The effective implementat ion of socio-economic rights (“SERs”) is crucial in

the ght against poverty and underdevelopment,1 as they provide a framework

through which accountability for poverty ca n be strengt hened. These rig hts

are aimed at addre ssing some of the underlying conditions of poverty such as

lack of access to food, social security and assistance, health car e and housing.

They are therefore useful tools th rough which people can gain access to basic

social ser vices and resource s, in order t o improve their sit uations and live a

digni ed life.2 This is pa rticularly import ant for disadvantaged groups such

as those living in povert y. However, the extent to which SERs have and can

contribute towards improving the situations of people livi ng in povert y has

been li mited, to some extent, by the fact that thei r justiciability was (and in

some cases still is) u nsettled.3 Though the Universal Declaration of Huma n

Rights, 1948 (“UDHR”) recog nised SERs as fundament al to a person’s well-

being and dignit y,4 thei r justiciability was subsequently questioned; resu lting

in the adoption, in 1966, of the International Covenant on Economic, Social

and Cult ural Rights (“ICESCR”)5 wit hout a c omplaints6 mecha nism, as was

the case with its sister covenant, the I nternational Covenant on Civil and

* I would li ke to th ank Profes sor Sandra Liebenberg for her useful c omments on an earl ier draf t of thi s

paper; and the Commun ity Law Centre for its institution al support during the prep aration of the first draft

of this art icle

1 See C Mbazi ra “Enforcing the Economic, Social and C ultural R ights in th e African Charter on Human

and Peoples’ Rights: Twenty Years of Redunda ncy, Progression and Signif icant Strides” (2006) 6 AHRLJ

333 333, where a similar point i s advanced

2 S Liebenberg “So uth Africa’s Evolving Jurispru dence on Socio -Economic Rig hts: An Effec tive Tool in

Challengi ng Poverty?” (2002) 6 LDD 159 159

3 For further re ading on reas ons advanced for non-justiciabil ity of socio-ec onomic rights, see M Brennan

“To Adjudicat e and Enforce Socio -Economic Rights: Sou th Afri ca Proves that Dom estic Cour ts are a

Viable Option” (2009) 9 QUT LJJ 64 65

4 Art 22 of the Universal D eclaration of Human R ights (1948) UN Doc A/810 at 71 (“UDHR”)

5 International C ovenant on Economic, So cial and Cultur al Rights (1966) UN Doc A /6316 (“ICESCR”)

6 The term “complaint s” as used in this a rticle includes “com munications” or “ petitions”

(2011) 22 Stell LR 683

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Political Rights (“ICCPR”).7 In addition, while the ICCPR explicitly requ ired

States “to develop the possibil ities of judicial reme dy”,8 the ICESCR did

not contai n such an explicit provision. Consequently, until recent years, not

much attention was paid to developing mechanisms for their enforcement,

particularly at the United Nations (“UN”) level. The la ck of a dedicated

mechanism for these rights was seen as “starvi ng the law of oxygen needed to

develop a more coherent understandi ng” of these rights.9

The situat ion changed in 2008 with t he adoption of the Optional Protocol

to the Inte rnational Covenant on Economic, Social and Cultu ral Rights

(“OP-ICESCR”),10 which makes provision for a complai nts mechanism for

violations of SERs.11 The Protocol is seen as “an important mech anism

to expose abuses that are typically linked to poverty, disc rimination, and

neglect, and that v ictims frequently endure in silence a nd helplessness”.12

Once a State rat ies the OP-ICESCR, the effective enforcement of SERs and

the provision of an effective remedy for their violation is the only way it can

escape the adjudication of these rig hts under this new mecha nism.13

Increasingly, litigation14 is becoming an att ractive tool for human rights

movements worldwide and is f undamental to buildi ng international justice.15

International law mecha nisms for litigating rights are useful for marginal ised

groups and people living in povert y based on their important role of ensuring

that States meet the obligations they have committed to through the ratication

of treaties, including the provision of effective remedies in cases of violations.

The existence of inte rnational litigation mecha nisms the refore encourages

governments to en sure the availability of more effective local remedies in

respect of SERs. The ability to litigate SERs at the global a nd regional levels

furthe r “enables international jur isprudence on these right s to develop in the

context of concrete cases”, wh ich would be a usef ul resource in developing

national ju risprudence on SERs.16 However, it should be noted that national

jurisprude nce can also inuence the development of international law.

7 International C ovenant on Civil and Politi cal Rights (1966) UN Doc A /6316 (“ICCPR”)

8 Art 2(3)(b)

9 M Scheinin & M Langford “Evolutio n or Revolution? – Extrapolati ng from the Experien ce of the Human

Rights Com mittee” (2009) 27 Nordic Jo urnal of Human Right s 97 100

10The Optional P rotocol to the Interna tional Covenant on Economic, So cial and Cultural Rig hts (2008) UN

General A ssembly Resolution 63/117 (“OP-ICESCR”) is not yet in force, as it requires ten ratif ications

As of September 2011, it had been ratif ied by four States (Ecuado r, El Salvador, Mongolia and Spain) and

signed by 32 others

11The pat h to the adoption of the OP-ICESCR c an be tr aced to as far back as 1948 when the UDHR was

adopted See L Chenw i “Correcting t he Historical Asym metry betwee n Rights: The Optional Pr otocol to

the Inter national Coven ant on Econom ic, Social and Cultural R ights” (2009) 9 AHRLJ 23 26 -29, where

it is tra ced from 1990; M Langford “Closing the Gap? – An I ntroduction t o the Optional Protocol to t he

Internat ional Covenant on Econom ic, Social a nd Cultur al Rights” (2009) 27 Nordic Journal o f Human

Rights 1 3-9, where it is t raced to as far back a s 1948

12L Arbou r “Human R ights Made W hole” (2008) Policy Innovations

ideas/commen tary/data/00 0068> (accessed 17-06-2011)

13Brennan (20 09) QUTLJJ 65

14Litigation is use d in this article broad ly to refer to the process of takin g a case through a judicial or qua si-

judicial tre aty-body

15Carnegie Council on Ethics and Int ernational Affair s “Litigat ing Hu man Rig hts: Prom ise v Perils –

Introduct ion” (2000) 2 Human Rights Di alogue 1 1

16S Liebenberg S ocio-Economic R ights: Adjudication un der a Transformative C onstitution (2010) 117

684 STELL LR 2011 3

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